AKHIL SHARAT GOSEWA SANGH v. STATE OF A.P. AND ORS

Citation: [2006] 3 S.C.R. 543

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, TARUN CHATTERJEE

Case summary

AKHIL SHARAT GOSEWA SANGH v. STATE OF A.P. AND ORS.pdf

Judgment text

AKHIL SHARAT GOSEWA SANGH v. STATE OF A. P. AND ORS. MARCH 29, 2006 [Y. K. SABHARWAL, CJ. AND TARUN CHATIERJEE, J. ] Industries (Development and Regulations) Act, 1951; Section 11(2)/ Andhra Pradesh Prohibition ofCow Slaughter and Animal Preservation Act, 1977/Andhra Pradesh Gram Panchayat Act, 1964; Section 131(3)/Notification dated July 25, 1991 issued by the Central Government and Notification dated February 3, 1992 issued by the State ofAndhra Pradesh: Application for grant ofindustrial licence to a company to run slaughter house-Issuance of No Objection Certificates by various authorities-State Government recommending grant ofthe licence-Central Government issuing Letter of Intent in terms of provisions of Industries (Developmenl and Regulations) Act-Suspension ofpermission by Gram Panchayat-Suspension order lifted by the State Government-Challenge to--Reversed by a Single Judge of!

he High Courl-Appeal against-Division Bench ofthe High Court held that since authorities concerned granted permission duly considering all the relevant facts, there was no ground for intervening and disturbing establishment ofthe slaughter house-On appeal, Held: Only after holding an enquiry and having satisfied, permission to run the slaughter house granted-- Provisions relating to location requirements/distance prohibition are directory in nature-Cenlral Government could issue licence even without imposing any conditions as to the distance prohibition-Since the licence was issued to the company, it amounts to waiver of the conditions-Besides, the licence issued to the company in terms ofthe industrial policy ofthe State Government, hence, the distance prohibition could not be considered to be a ground for cancellation of the licence/closing down of the unit-Since, question as to location requirement is a question offact, it cannot allowed to be raised at this stage.

Grant of an Industrial Licence -Environment Protection Ru/es- Violation of-Held: State Pollution Control Board could prescribe higher standards ofpollution control but could not lower the same-Since the company had installed elaborate anti-pollution equipments, the company is directed to comply with the Rule by lowering down the pollution level to permissible limits--! f the company fails to do so, it would be open to the authorities to direct closure of the company--Environment Protection Rules--Rule 3-- Schedule /--Entry 50 B. Water Act; Sections 11 and 25: Right to information to members ofpublic--Non-disc/osure---Ejject of-- Held: Provisions under the Act does not confer any such right--Hence, issuance of NOC by the authorities not vitiated by reason of non-disclosure of information to the appellant--('onstitution of India, 1950--Artic/e 19(/){a).

Grant of Licence to run slaughter house--Ejfect on Caulelbuffaloes population-Held: Central are required to be strictly complied with and therefore it is the duty of th<.! State authorities to comply with the aforesaid provisions of the 1964 Act. In this view of the matter, Question No. I as framed herein earlier is decided in favour of the appellants by directing the State Government and other State authorities to strictly enforce and implement the provisions of Sections 4, 8 to 11 and 18 of the 1964 Act. Even though this conclusion was arrived at by the High Court in favour of the appellants, ultimate decision, however, went against them i. e. Writ Petitions were dismissed in their entirety. Let us now deal with the second issue raised by the appellants before us. According to the appellants, the view taken in Mohd. Hanif Quareshi & Ors. v. State ofBihar.

[1959] SCR 629 decision vis-a-vis relationship between Directive Principles and Fundamental Rights requires modification in the light of the decision in the case of Kesavananda Bharathi v. State ofKera/a, [1973) 4 SCC 225) and subsequent decisions. We need not deal with this aspect of the matter in detail in view of the recent decision of this Court in the case of State ofGujarat v. Mirzapur, [2005] 8 SCC 534. The decision of this Court in the_i:ase of Mohd. HanifQuareshi & Ors. v. State ofBihar [1959] SCR 629 has now been over-ruled on this point by the Constitution Bench decision of this Court in Mirzapur case. Therefore, this question is decided in favour ofthe appellants. In Mohd. HanifQuareshi & Qrs. v.

State ofBihar, (1959) SCR 629 the contention that a law enacted to give effect to Directive Principles cannot be held to be violative of fundamental rights was rejected on the ground that : "a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws AKHILBHARTGOSEWASANGH v. STATE OF A. P. [TARUN CHATTERJEE,!. ] 599 do not take away or' abridge the fundamental rights, for otherwise the protecting provisions of Chapter III will be "a mere rope of sand". (Emphasis supplied). This view was, however, not accepted in the aforesaid Constitution Bench decision in the case ofState ofGujarat v. Mirzapur, [2005] 8 SCC 534. The Constitution Bench noted that after the decision in Kesavananda Bharathi v.

State of Kera/a, (1973] 4 SCC 225 the position is : "A restriction placed on any fundamental right aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two /imitations : first that it does not run in clear conflict with the fundamental right, and secondly that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution. " (Emphasis supplied ) In Paragraph 22 of the decision in the case of State of Gujarat v. Mirzapur, it has beeri held as follows: "The restrictions which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the Chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the fundamental rights. "(Emphasis supplied). Further, in the case of State of Gujarat vs.

Mirzapur, so far as Arts. 48, 48-A and also Art. 51-A(g) are conceme~ the following· was held: "It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Art. 51-A of the Constitution play a significant role. The decision in Quareshi-1 in which the relevant provisions of the three impugned legislations were struck down on the singular ground of lack of reasonability, would have been decided otherwise if only Art. 48 was assigned its full and correct meaning and due weightage was given thereto and Arts. 48-A and 51-A(g) were available in the body of the Constitution. " (Emphasis supplied) In view of the aforesaid admitte~ position in law, we therefore hold the question No.

2, as framed, must be decided in favour of the appellants. This question, even though decided in favour ofthe appellants would not materially affect the decision of this appeal. The third question which concerns interpretation of Art. 48 of the Constitution shall now be dealt with. In 1958 Quareshi 's case it was held that: "the protection recommended by this part of the directive is, in our opinion, confined only to cows and calves and to those animals which are presently or potentially capable of yielding milk or of doing work as draught cattle but does not, from the very nature of the purpose for which it is obviously recommended, extend to cattle which at one time were milch or draught cattle but which have ceased to be such. " (Emphasis supplied). But in the case of State ofGujarat v.

Mirzapur this position was overruled and it has been held that: "'In our opinion, the expression 'milch or draught cattle' as employed in Article 48 of the Constitution is a description of a classification or species of cattle as distinct from cattle which by their nature are not milch or draught and the said words do not include milch or draught cattle, which on account of age or disability, cease to be functional for those purposes either temporarily or permanently. The said wcrds take colour from the preceding words "cows or calves". A specie of cattle which is milch or draught for a number of years during its span of life is to be included within the said expression. On ceasing to be milch or draught it cannot be pulled out from the category of 'other milch and draught cattle. " (Emphasis supplied). Such being the position and in view of the Constitution Bench decision as aforesaid, it can no longer be held that the protection recommended by this part of the directive under Art.

48 of the Constitution can be said to be confined only to cows and calves and those animals which are presently capable of yielding milk or of doing work as draught cattle. The aforesaid Constitution Bench decision has clarified that the protection under Art. 48 of the Constitution also extends to cattle which at one time were milch or draught but which have ceased to be such. A submission was made by the AKHILBHARTGOSEWASANGH v. STATEOFA. P. [TARUN CHATTERJEE, J. ] 601 learned counsel for the parties on the usefulness of cattle. In ·1958 Quareshi 's case it was held that cattle becomes useless after a certain age which is for the Legislature to determine and thereafter their maintenance is a burden on the economy of the country. This position has also been negatived by the decision of the Constitution Bench in the aforesaid case, and it has been heId by this Court as follows: "We have found that bulls and bullocks do not become useless merely by crossing a particular age.....

The increasing adoption of non- . conventional energy sources like Bio-gas plants justify the need for bulls and bullocks to live their full life inspite of their having ceased to be useful for the purpose of breeding and draught. " (Emphasis supplied ) Following the aforesaid findings and on the basis of the findings that our economy has adequate cattle feed resources and alternative sources of nutrition, in the case of State ofGujarat v. Mirzapur, it was held as under: "The Legislature has correctly appreciated the needs of its own people and recorded the same in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In the light of the materiai available in abundance before us, there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation's economy.

Merely because it may cause 'inconvenience' or some 'dislocation' to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter. " (Emphasis supplied) Therefore, in our view, the interpretation of Art. 48 of the Constitution has now been widened and "milch and draught cattle" include cattle which have become pennanently incapacitated to be used for milch and draught purposes. Hence, this question is decided in favour of the appellants. Though, this question has been decided in favour of the appellants, it does not make any material difference to the final decision of this case. It is the decision on the next issue i. e. issue No. 4 that will have impact on final directions to be issued in this case. Let us come to issue No. 4, i. e.

whether section 5 of the 1964 Act is unconstitutional in so far as it does not impose a total prohibition on slaughter of bovine cattle and whether a writ of mandamus must be issued to the State Government to impose a total ban on slaughter of bovine cattle in the State of Kamataka? In State ofGujarat v. Mirzapur the impugned Act therein, provided for prohibition on slaughter of certain types of cattle. The Constitution Bench of this Court in that case held such a legislation to be constitutional in the light of the finding that the legislation was in furtherance of the directive in Art. 48 of the Constitution and any enactment which furthers the cause in the directive principles of State Policy cannot be held to be unconstitutional. It was, however, not held that permitting slaughter of bovine cattle by itself is unconstitutional. In the case at hand, section 5 of the 1964 Act does not provide for a total prohibition on slat. 1ghter of bovine cattle.

That being the case, declaring section 5 of the 1964 Act as unconstitutional and directing the State Government to impose a total ban on slaughter of bovine cattle, as requested by the appellants, would lead to judicial legislation and would encroach upon the powers of the Legislature. Therefore, the prayer of the appellants in issue No. 4 to issue a writ to the State Government to totally prohibit slaughter of bovine cattle is rejected. In view of our discussions made hereinabove, even though the Mirzapur decision supports the submission of the appellants on the questions Nos. 2 and 3, the issuance of writ of Mandamus to compel total prohibition of cattle slaughter would only amount to judicial legislation and would encroach upon the powers of the Karnataka Legislature, as held by the High Court, which, in our view, was the right approach made by it.

That being the position, we are of the view that the question of declaring total ban on slaughter of cattle cannot be permitted and section 5 of the Act cannot be said to be ultra vires of the Constitution. For the reasons aforesaid, the appeals are allowed in part, i. e. to the extent of directing the State Government to strictly enforce and implement the provisions of Sections 4, 8-11 and 18 of the 1964 Act and take action on any violations thereof. Further, it is directed that the State Government maintain proper institutions for providing care and protection to cattle in the light of section 18 of the 1964 Act. There will be no order as to costs. S. K. S. CA. Nos. 3964-3968/1994 disposed of and CA. Nos. 4711 to4713/1998.